No, not really: but the interim final rule published the other day by the Department of Homeland Security in the Federal Register is interesting nevertheless. What the interim final rule does is change some of the regulations affecting international students here in the U.S. on F-1 student visas (there are about 600,000 or so international students in the U.S. on F-1 visas; with much smaller numbers present on other kinds of visas), extending employment benefits for some of these students in ways that on the surface seem good for them. But after reading the fine print, I find the document fascinating as a kind of mishmash of conflicting political and policy objectives, resulting in an administrative ‘fix’ that’s like to cause your institution’s international student office to go absolutely batty.
A bit of context may help:
Under existing regulations, F-1 (undergraduate and graduate) students who complete their programs in good standing and within the time limits allotted to them under the terms of their immigration status have the *option* of applying for a benefit called Optional Practical Training, or OPT. OPT allows them to stay for a period of up to one year to gain ‘practical training’ in their field of study, such as by getting a job that allows them to develop the skills they learned at school. The idea is that a student who gets a degree should have the opportunity to get some practical experience before heading home (or going on to further education, which is always an option as well). OPT doesn’t necessarily have to be paid, regular employment – many journalists and artists freelance during their OPT periods; while others engage in research or other activities that are low- or unpaid – although my guess is that this is the primary goal for most of the students who take advantage of this benefit. As with any government benefit, it’s not granted automatically: a student who wants OPT must actually apply for it (the application fee stands now at $345, or something like that) on the basis of a recommendation from his or her school’s international student office, and approval is not guaranteed, though with the international office’s recommendation, usually routine.
There are some limits to this benefit. It’s non-renewable, although a student is eligible for 12 additional months of OPT if she completes a program at a higher degree level – so a student could hypothetically obtain a BA, engage in 12 months of OPT, and then go on to graduate school for an MA, and get another 12 months after that, and so on. But it’s otherwise extremely flexible. The student doesn’t actually have to have a job to apply for the benefit – some students spend a considerable portion of their 12 months actually looking for work, often unsuccessfully – although the general idea is that if the student doesn’t actually intend to look for work, then he/she should return home or go back to school. And unlike most work visas, which are employer-specific, OPT allows a student to accept different positions and employment offers as long as the work is directly related to the student’s original field of study. A student who gets an MS in computer science can’t use the OPT benefit to work as a waitress, but can change employers or even hold two jobs at the same time. (Obviously, there are some ambiguities here, but the idea behind OPT is that it’s a benefit to allow the student a flexible but time-limited period within which to get ‘practical training,’ and not just any old job).
How does the interim final rule affect this arrangement? More background is needed here. As many in the immigration business know, there’s been a raging debate for many years now regarding another visa category, the H1B1, or the H-1, for short. The H-1 visa is used to sponsor individuals for ’specialty occupations,’ especially in fields requiring technical expertise or specialized training. The H-1 visa is used to sponsor foreign nationals for all kinds of positions – including teachers and certain kinds of ’skilled administrators’ (not an oxymoron!) – but it’s been a popular visa category among software, engineering, business, and manufacturing firms who need people with scientific and technical knowledge. The problem is that this visa is politically controversial: are companies using it to ‘import’ cheap and ‘politically pliable’ skilled labor from countries like India and China and thus undercut wages and labor organizing, or is it a rational mechanism that can help to secure American economic competitiveness by bringing in sorely needed talent from overseas, as many business interests argue?
In the interim final rule, the DHS takes the latter position. Because the H-1 has been so politically controversial over the years, Congress has restricted the number of visas given out in this category to 65,000 a year – the exact same number that was given out some ten years ago, when I first started out in the immigration business. However, as DHS points out in its discussion of the interim rule, this has resulted in the H-1 visa being heavily oversubscribed. The USCIS – the division of Homeland Security that deals with employment-related matters, among other things – accepts applications from employers wishing to sponsor foreign nationals for H-1 visas on April 1 for the fiscal year starting October 1. This year, the USCIS closed the application period the very next day: well over 65,000 applications were received on the first day of the application period. The application periods have been closed progressively earlier each year for many years now, but this was a record. There are also 20,000 additional H-1 visas specifically designated for graduates of U.S. institutions of higher education, but these two are already in ‘lottery phase,’ which means that the USCIS has received more applications than visas and is using a lottery system to decide which of the applications it has already received to consider.
However, because the H-1 visa caps are Congressionally mandated, the DHS has decided that one way of ‘resolving’ this process is to look to the international student talent pool. This is an understandable strategy: many F-1 students on OPT, cognizant of the fact that OPT is a fixed one-year benefit, are eager to find employers willing to sponsor them for H-1 visas so that they can remain in the U.S. and continue to work. But since the H-1 applications for 2008-09 are already gone, however (and it’s not even two weeks into April!), this means that under the existing arrangement the next window they have to get an H-1 visa is April 1, 2009 to begin on October 1, 2009. But it’s more than likely that their OPT will run out before them, leaving them with a ‘gap’ during which time they won’t be able to work legally, and making them as a result less desirable to employers.
The interim final rule ’solves’ this problem by extending the Optional Practical Training period from 12 to 29 months for F-1 students, but for only those engaged in a ‘STEM’ (science, technology, engineering, or medical) field. F-1 students who are studying liberal arts or even the social sciences are generally out of luck. The rationale for this? Globalization. As the DHS writes:
…because of “globalization, the United States, while still the leading producer of scientific knowledge, faces a labor market in which it must increasingly compete with these countries. The economies of the [OECD] countries, particularly Australia, Canada, and certain European countries, are also providing increased opportunities for STEM scientists. And STEM graduates from the growing economies of China, India, and Russia, for example, have increased employment opportunities in their native countries…In short, with their large and growing populations of STEM-graduate scientists, high-tech industries in these three countries and others in the OECD now compete much more effectively against the U.S. high technology industry.”
The primary beneficiaries, then, are F-1 students in STEM fields. Students in non-STEM fields are given a much shorter extension: their OPT periods will be extended beyond the 12 months to the approved start date of their H-1 visas for a maximum of 180 days, but the extension applies if and only if they have an employer that’s submitted an H-1 application on their behalf. If they don’t find an employer who’s willing to do this, their OPT period stays fixed at a maximum of 12 months.
There are multiple catches embedded within the new rule, however, bringing with them multiple headaches, principally in the form of new and additional information and data collection burdens that international offices will have to carry out. One catch is that a student in a STEM field can’t request a 17-month OPT extension unless his or her employer has registered in “E-Verify,” which is an internet portal constructed by Homeland Security and Social Security which allows employers to verify the employment eligibility and Social Security information of a prospective employee (an employer can use it to verify the information for only new hires, not current employees). However, the interim rule states, after rolling out some impressive-sounding numbers, that fewer than 1% of U.S. based employers are enrolled in E-Verify, and it’s not clear that the pleadings of an F-1 student who wants to extend her OPT from 12 to 29 months will get many of them to do so.
Additionally, DHS has been moving over the years to ‘crack down’ on F-1 students who spend their 12 months of OPT not working: some, as I’ve already mentioned, spend much of the year looking for work; while others dither about, or work on their applications for grad school, or engaged in other kinds of activities. The new rule announces that an F-1 student who spends an ‘aggregate of 90 days’ of their 12 months not engaged in employment loses the status. It may sound reasonable to some ears, but as I indicated earlier OPT was never about employment per se but about ‘practical training.’ What counts as practical training? How is this information to be collected and reported on a reliable basis, and by whom? Will international offices be demanding pay stubs and letters of employment in order to recommend OPT extensions? None of this is particularly clear.
It seems to me that the real debate is over the H-1 visa. The number of H-1s given out is now at 65,000, which is exactly where it was ten years ago. About that time, Congress agreed to a temporary bump in the number from 65,000 to 115,000 and then to 185,000 before going back down to 65,000 – in part to accommodate the internet boom. But after boom went to bust, there’s never been much political will or impetus to get that number raised again, permanently. Interestingly, in the rule the DHS takes worried note of the “Blue Card” proposal being considered by the European Union, which would allow an unlimited number of skilled workers to enter the EU, with a 90-day processing turnaround (processing times for H-1s take about 6 months, unless employers agree to pay a ‘premium processing’ fee in the thousand+ dollar range to expedite an H-1 application on behalf of an employee). Since there’s not any likelihood of significant changes in the H-1 category, the series of changes being implemented in the OPT framework seems to me more as a patchwork, demonstrating responsiveness to global competitiveness issues in the most roundabout way possible. And, ladening it with fuzzy and unclear reporting and verification requirements, while placing restrictions on it designed to entice employers to enter the web of Homeland Security’s monitoring systems, is not likely to make it particularly attractive – or effective as a national competitiveness tool*. But then again, we’ll see.
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What contributes to the somewhat schizophrenic character of this new policy is that F-1 visas are explicitly non-immigrant visas: which means that F-1 students must have, and be able to demonstrate, their intention to return home after completing their studies and/or any period of authorized OPT. A student who even expresses the intention of seeking permanent residence in the U.S., much less citizenship, runs the risk of being denied an F-1 visa (and students from certain countries, especially India and China, were often denied student visas on precisely these grounds). At the same time, this supposed extension of OPT policy is designed to allow F-1 students more time to find employers who are willing to sponsor them for H-1 visas (which are often used as springboards to U.S. permanent residency and citizenship), and in general to help fill America’s science-technology competitiveness gaps. While not strictly contradicting the concept of ‘non-immigrant status,’ it certainly seems to encourage F-1 students in STEM fields, at least, to form immigrant intent.
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Update: In response to a query, “How do I know I am in a STEM field, and therefore eligible for the 17-month extension?”…a couple of pointers.
1. Ask your international student office for a conclusive determination – the info here are only pointers.
2. Note that in the final rule the DHS lists out the majors that qualify:
Actuarial Science. NCES CIP Code 52.1304
Computer Science: NCES CIP Codes 11.xxxx
(except Data EntryMicrocomputer Applications, NCES CIP Codes 11.06xx )
Engineering: NCES CIP Codes 14.xxxx
Engineering Technologies: NCES CIP Codes 15.xxxx
Biological and Biomedical Sciences: NCES CIP Codes 26.xxxx
Mathematics and Statistics: NCES CIP Codes 27.xxxx
Military Technologies: NCES CIP Codes 29.xxxx
Physical Sciences: NCES CIP Codes 40.xxxx
Science Technologies: NCES CIP Codes 41.xxxx
Medical Scientist (MS, PhD): NCES CIP Code 51.1401
The major field of study is listed on your I-20 (section 5, I think). Each major field is assigned a CIP code, and that code has to fall into one of the groupings, above, although note the exceptions for Actuarial, Computer, and Medical Science.
For example, “Statistics, General” has a CIP code of 27.0501, which would fall into the “27.xxxx” group listed above. However, “Science Teacher Education” has a CIP code of 13.1316, which isn’t listed above, so it wouldn’t qualify. You would have to go to the NCES web site and look up the CIP code assigned to your major; fortunately, that’s easy enough because that information is publicly accessible.
3. Remember that in order to qualify for the STEM exception, the rule indicates that you also already have to be in the 12-month post-completion OPT period and have (or will have) an employer who’s enrolled in the Department of Homeland Security’s E-Verify Program. Since by their own admission less than 1% of employers are in E-Verify, the chances are your employer is not. But who knows? You’d have to speak to your HR office.
